Opinion
17–3354
05-31-2018
The PEOPLE of the State of New York, Plaintiff, v. Robert JOHNSON, Defendant.
For the People: Westchester County District Attorney, Mount Vernon branch For Defendant: Judith E. Permutt, Esq., 1 W. Prospect Avenue, No.231, Mount Vernon, NY 10550
For the People: Westchester County District Attorney, Mount Vernon branch
For Defendant: Judith E. Permutt, Esq., 1 W. Prospect Avenue, No.231, Mount Vernon, NY 10550
Adam Seiden, J.
The defendant is charged by superseding misdemeanor information with Petit Larceny (P.L. 155.25), Criminal Mischief in the Fourth Degree (P.L. 145.00), Resisting Arrest (P.L. 205.30), and Obstructing Governmental Administration in the Second Degree 9P.L. 195.05) ).
On January 24, 2018, defendant filed an omnibus motion seeking 1) a Huntley/Dunaway hearing, 2) a Wade hearing, and 3) a Sandoval hearing. The People consented and the matter was adjourned for hearings until March 19, 2018. The hearing date was adjourned until April 30, 2018. On April 30, 2018, defendant made an oral request for a Mapp hearing in addition to the other hearings. The People opposed the motion.
Defendant now files this supplemental motion seeking to suppress physical evidence, or in the alternative a Mapp hearing. Defense counsel acknowledges that the motion is untimely. However, she states that when she conducted open file discovery on April 19, 2018, she learned that the police allege that a BB gun and possibly a knife were seized from the defendant in connection with the instant matter. Counsel argues that the People will not be prejudiced by the request for a Mapp hearing as no hearings have been held in this matter. Counsel further argues that the issues explored in the Dunaway hearing would essentially be the same as those in a Mapp hearing.
The People oppose the motion. They argue that the motion is untimely pursuant to C.P.L. § 225.20 and that defendant did not properly seek to reargue. The People argue that late motions may only be entertained upon a showing of "good cause" by the defendant and that defendant has failed to demonstrate good cause for the late filing of the supplemental motion to suppress physical evidence.
C.P.L. § 255.20 mandates that all pre-trial motions must be made in the same set of papers and must be served or filed within forty-five (45) days of the defendant's arraignment. With two notable exceptions, any pre-trial motion which does not comply with the above requirement may be summarily denied. The two exceptions are as follows: First, the court must entertain and decide any motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the forty-five day period or included within a single set of motion papers. Second, the Court may, in its discretion, entertain and decide any untimely motion, in the interest of justice and for good cause shown. CPL § 255.20 (3) creates an unambiguous requirement that the defendant show due diligence or good cause before an untimely omnibus pretrial motion may be determined favorably on his behalf regardless of whether the People are prejudiced by the delay ( People v. Coleman , 114 Misc 2d 685, 452 N.Y.S.2d 503, 505, 1982 NY Misc. LEXIS 3545 [NY Sup. Ct. 1982] )
Here, defense counsel argues that it was not until she availed herself of open file discovery on April 19, 2018, that she was first made aware that a BB gun and "possibly a knife" was recovered by police.
As noted by the Court of Appeals, "[t]he time restrictions fixed by CPL § 255.20 are not casual" ( People v. Davidson , 98 NY2d 738, 739, 780 N.E.2d 972, 751 N.Y.S.2d 161 [2002] ) and are directly related to "the strong public policy to further orderly trial procedures and preserve scarce trial resources" ( People v. Lawrence , 64 NY2d 200, 207, 474 N.E.2d 593, 485 N.Y.S.2d 233 [1984] ).
This Court rejects the defendant's contention that the motion to suppress physical evidence, and or a Mapp hearing should be granted, albeit late, because she just learned about the items during open file discovery. The accusatory instrument and witness deposition both reference a knife being utilized by the defendant, and the witness deposition references a "gun". All defense attorneys practicing in the Mount Vernon City Court are aware, or should be aware of the open file discovery policy of the District Attorney's Office. Defense counsel are also reminded that pursuant to the Chief Judge's Order that is provided to both the defense bar and the prosecution at all arraignments, their obligation to, amongst other things, is to perform a reasonable investigation of both the facts and the law pertinent to the case (including reviewing all discovery materials obtained from the prosecution), or if appropriate, make a reasonable professional judgment not to investigate a particular matter ( People v. Rhames , 58 Misc 3d 1231 (A); 2018 NY Slip Op. 50332(U) [City Ct. Mount Vernon 2018] ) ) This Court finds that defense counsel could have with due diligence, discovered in a timely manner the recovery of the BB gun and knife, namely through interviews with defendant himself. Moreover, defendant filed his first omnibus motion on January 24, 2018. On March 19, 2018, the People consented to the motions and the matter was set down for hearings. Almost three months after filing the original motion and one month after the People orally consented to the hearings in the original motion, defense counsel chose to avail herself of open file discovery. Accordingly, this Court finds that "this belated suppression motion is not based ‘upon grounds of which she could not with due diligence, have been previously aware’ " (Id. citing CPL 255.20[3] ); see People v. Coates , 157 AD2d 843, 844, 550 N.Y.S.2d 733 [1990] ; see also People v. Young , 278 AD2d 437, 438, 718 N.Y.S.2d 630 [2000] ; People v. Toxey , 220 AD2d 204, 631 N.Y.S.2d 846 [1995] ).
The motion is denied.
This constitutes the Decision and Order of this Court.